Mar 19, 2013
MailChimp’s Redesigned Terms of Service and Privacy Policy
It’s a universally acknowledged truth that most people don’t take so much as a glance at any given company’s terms of use. As MailChimp’s general counsel, this bothers me—the terms of use make up our entire contract with our users, so it’s really important stuff. But as a human, I understand why people might not have read our terms until now. They weren’t very welcoming, to say the least:
So after pondering this problem for a long time, doing a bunch of research, and collaborating with a team of coworkers, including our amazing content strategist, UX designer, and front-end developer, I’m happy to present our solution. Today, we’re unveiling our redesigned legal policies, which include our Terms of Use, Privacy Policy, Acceptable Use Policy, API Use Policy, and Copyright Policy. The main goal of changing these policies was to make them easier for you to understand, in hopes that you might actually read them. To accomplish this, we did a few things:
Use plain(ish) language
We want to present our terms like any other content that’s meant for humans, not just for other attorneys. Wherever possible, we tried to strip down the language to make it simpler. It was a difficult process. Writing in plain language is hard for lawyers for a variety of reasons. Legalese is our habit and our security blanket. Now, bad habits must be broken, so just because wherefores, hereunders, represents, and shalls all run from my keyboard like LOL, ttyl, and OMG flow for others doesn’t mean I should use them. Particularly since more and more regulators are calling for easier to understand policies so consumers can make more informed choices. But as a lawyer, I feel safe when I use certain phrases, like “represent and warrant” for example, because when I use them I can be certain of what a court will adjudicate them to mean. In a common law system, like we have here in the U.S., we build law through case law, and there are hundreds of cases where two attorneys argued about what a specific term meant, and a judge then decided the answer. In light of that long judicial history, using legal terms is often safer. But since the foundation of contract law is an understanding of the parties, not the specific words used to memorialize that understanding, it’s better if all the terms are clear for everyone instead of just familiar to attorneys.
That said, there are some instances where plain language just isn’t possible. There are some terms that are so nuanced and specific that there’s no plain-language equivalent. If you try to replace them, you just end up with a long, wordy, and sometimes-even-terrifying sentence that stirs up more concern from customers than it remedies. This has created disasters for some companies in the past, and once someone hears that you’re taking ownership of all their kitten photos, it’s really hard to undo that damage. That’s why we haven’t removed all the legal terms from our policies. You’ll still come across an occasional “represent and warrant,” “shall,” or “indemnify,” but know that these terms are there for a reason—not just because we couldn’t think of anything better. You’ll also notice that these policies aren’t as playful as some of our other content. That’s because legal terms are serious business, and at MailChimp, we adapt our tone of voice based on the situation. These documents are agreements we have with all our users, so this isn’t really a time for jokes. It’s a time to be clear and give users all the information they need in order to make an informed choice about whether or not they want to do business with us (and I sure hope you do). Though we do sneak one or two fun things in for users to find, so stay vigilant:
Disappointed to learn on reading @mailchimp‘s T&Cs for ‘Gather’ that they consider a Zombie Apocalypse and Godzilla to be force majeure
— Tracey Johnson (@Cr8tveBarnsley) February 21, 2013
Make it logical
We’d already separated our legal content into Terms of Use, Privacy Policy, and Copyright Policy. This time, we further separated our Acceptable Use and API Use policies to make the whole thing easier to reference and navigate. You can get to any of these pages from our new landing page, which is a one-stop-shop for all things legal. And of course, you can jump from document to document as needed. Our designers even created some icons to make that experience a little more pleasant.
We divided our policies into sections based on what users look for most often, instead of an order arbitrarily chosen by lawyers. By dividing the terms into sections united by themes like payment and liability, our readers can refer back to specific sections, instead of searching through an entire body of text.
We managed to avoid some of the trappings of typical legalese. We no longer capitalize entire paragraphs, we set the type large enough to read comfortably, and we use bullets and numbers to give a sense of hierarchy.
Make thorough disclosures
We’ve always disclosed how we use cookies (we even have a KB article about it). But considering how much attention regulators and consumers are paying to cookies, web beacons, and other tracking methods these days, we went through our disclosures once again to make sure they were clear and covered every way we use them. So the substance of those clauses didn’t actually change, but the language did.
Every year, our site undergoes a privacy review by a company called TRUSTe. In the course of that review, they verify the cookies and web beacons that are used on our website. This year, they found a flash cookie that was there because we embed video on our site. We don’t use that cookie for anything (some sites will use these types of cookies to keep track of volume preferences or high scores). But even though we don’t use the cookie, it’s there—so we thought we should tell you about it.
Provide a little help
Finally, we added a bit of helper text in the sidebar to supply context for certain sections. A trend we’ve been seeing for a while now is that websites will add a sidebar to their terms that has a plain-language summary, or a spotlight on parts they think are most important in their terms. We feel this is a little disingenuous, because if all a user needs to read is that sidebar, then why isn’t that your entire agreement? The answer is because they still want to have the protection of all the nuances of legalese. I don’t think you can have it both ways. The goal of our sidebar is not to summarize the terms, but to give you more context for a particular provision. In some cases, the helper text shares a concrete example of what we’re talking about, like this:
Other times it gives you some background on a legal term:
So, there’s a brief overview of our new policies. We really hope you like them. By the way, we also updated Mandrill‘s and TinyLetter‘s legal policies. The three apps share a privacy policy since they’re all run by MailChimp, but the terms of use aren’t identical, because people use the apps for different reasons.
Posted By
Ixchel
Did you actually change any of these legal policies and rules, or just rearrange them? If there are changes, what are they?
03.19.2013
Valerie
Ixchel, The majority of the changes are structural or stylistic. There have however been some minor content changes as well. Since this has been such a large project that has gone through many, many revisions it is impossible to give you an exhaustive list of all the changes. My best suggestion would be to please take a few moments to go over the Terms yourself.
03.20.2013
Ixchel
Well, I did go over the terms, but since I didn’t memorize the previous version, it doesn’t really help me to know if they have changed or not. If the content changes are “minor”, how exhaustive a list can that be? In the interests of transparency, I’d reconsider keeping that list secret, it looks less than friendly.
03.21.2013
Valerie
Unlike the Nic Cage in National Treasure, we try not to keep secrets lists. So I made a non-exhaustive list of content changes for you: the API policy is new, the contact on our copyright policy has been updated, we’ve changed our General Rules to include a reference to the Acceptable Use Policy (which contains the spam/abuse rules that have always been in the terms,) Sections 6, 26, and 27 have been added, Proprietary Rights Owned by You has made it clearer that you retain ownership of the content you upload, our disclosures in our privacy policy have been updated, and we’ve clarified the limited circumstances under which we will use and disclose your Distribution Lists.
03.25.2013
jerrystevens
I appreciate your willingness to make your terms, privacy policy et all etc etc readable and understandable to the average person, but besides readability, the real problem with these things is the sheer volume of them we supposedly “read and understand”. There should be an option we check that says, truthfully: “I don’t have time to read this but I agree to be bound by them. I mean, really, it’s just an email service. If you kick me off, you kick me off.”
03.19.2013
Kim Gaxiola
Jerry, I completely agree with your comment. There are many problems with so many disclosures in every industry, that when important disclosures (such as the ones in the financial & healthcare fields) get created – they are ignored, because as consumers we’ve become immune to them.
03.19.2013
Walter
We become inured to the T&C. Not immune!!
03.19.2013
Steve Pickering
Jerry, you make an excellent point when you suggest an alternate item stating something similar to, “I haven’t read this document, but I agree to be bound by it.” The ability to use that statement would reflect the current reality of internet legal agreements.
03.19.2013
Barb
Jerry. Right on!! too long to read is right.
I try to play by the rules…..but who has time, or understanding, or patience to read them all.
Thanks for a great service Mail Chimp!!
Hope not to be kicked off…..will try to read rules.
03.19.2013
Nick Wakelin
Jerry,
From my previous experience as an Internet Investigator I think you might be underestimating how important Terms and Conditions are (see. 24. Attorney Fees, 25. Liquidated Damages, 26. Equitable Relief, 27. Subpoena Fees). You might violate the Terms and Conditions but being ‘kicked off’ may be the least of your problems! Just because the service is online and free doesn’t make you immune to the law or legal costs (see recent legal cases involving Twitter) and ignorance is a pretty bad defence.
In saying that I do agree that further simplification goes a long way. Instead of having just one catchall ‘I agree…’ link, perhaps there should be a list of say 5 bulletpoints each starting with ‘I agree that I will not…’
03.20.2013
Valerie
Nick, You make a good point that users should not underestimate the importance of our Terms of Use. That’s exactly why I wanted to make our Terms easier to read and understand. We hope to never have to use any of the provisions you mentioned but you are right to point out that they are important for users to be aware of.
While I agree that keeping Terms short is a great goal, it’s difficult to tease out the 5 points that all users find most important. Particularly since MailChimp has users from all over the world who work in a wide variety of industries. My hope is that by providing more structure in the Terms users can easily find, read, and understand the parts of our Terms that really make a difference to them. We are exploring using short form policies for our mobile apps though.
03.20.2013
tom
You could include a glossary/footnotes to provide additional information/definitions regarding various legal terminology which you can’t or don’t want to remove.
03.19.2013
anita
as usual YOU do know yr monkeys. We indeed dont want to reed terms etc etc.. for most of the times we are not in the position to choose.! If a product/service is popular I take the risk that the underlying small print will do fine. Its a stupid thing to do, I know, f.i. apps scanning our phones.. etc. But people like you are an example to manny!
regards
Anita
03.19.2013
Phil Stracchino
Everything’s better with monkeys.
Kudos to you, sirs, for going to the effort to make your terms of service readable and understandable by the people who actually need most often to read and understand them. I wish every service on the Internet would follow your example.
03.19.2013
Dan Curry
One of the reasons I love your service is that, even with the boring legal issues, you make the effort to make the process transparent and understandable. Just one more reason why I try to get every mail list user I know to switch to MailChimp.
03.19.2013
George Windsor
I think we all appreciate that you need to cover your butt by having rules. I respect your rules and never willing or knowingly try to circumvent them. I am just trying to use your monkeys to communicate with our community and offering them the opportunity to opt in or out of our correspondence. If I error, and do anything against your rules, please advise me and I will take immediate steps to correct an error on my part. I think we will never communicate again!!! Thanks for MailChimp.
03.19.2013
K D Kragen
Bravo! Brava! Great job! Eloquent legal copy. As a copy-editor/writer proof-reader/wordsmith, I found your policy documents the most readable, enjoyable, and disambiguated of any I’ve read to date. As throughout human history, words (propositions, communication) are vitally important, how we use them, how we abuse them. Policy and usage statements are equally important because they are about accountability among language speakers, artists & creators. Making such tedious but important documents accessible and user-friendly is a worthy cause. You have taken up that cause with acumen and eloquence. Masterful work. You folks have set a new standard. (BTW, don’t know about Zombie Apocalypses, but Godzilla, Gojira, is my hero, the hero that kills you; and now you guys are my legalese heroes too.) Again, thank you. –K D Kragen
03.19.2013
PashaEsq
As an attorney. I love this initiative.
03.19.2013
Max Johns
I love the approach you guys have taken to your legal content. And I love even more that you’ve blogged about it. You guys rock.
03.19.2013
Paul Weaver
I am glad we are now able to find easily the section about the Safe Harbor rules that relate to use of Mail Chimp from Europe.
Having designed website for professional bodies in the UK and people who work within them I have to be 100% sure their use of Mail Chimp comply with the legal requirements of these professions.
One of our clients works in the Advisory, Investigatory & Analytical Forensic Services so we have had to do a lot of work to ensure he complies with all the laws related to content, claims and methods of work on his website as we know he is under scrutiny in all he does.
03.19.2013
Susanne Hoogwater
This is a great step forward to make the legal part of the deal more transparent, and increase awareness of what people agree with. Much more engaging then simply calling it “Legal Mumbo Jumbo” (which was the label the last time that I looked, a week ago)
I wish that people start to ask more specific questions and actually pay more attention before just clicking “I read, understand and agree”. I also hope that this encourages other companies to make disclosure a real commitment instead of a ritual dance. I think this is just the beginning to balance legal interests with user-friendly communication. (For the sake of disclosure – I have a professional interest in these types of legal innovations: I promote Visual Contract Design) Thanks MailChimp!
03.19.2013
DJNSM
Totally fell asleep reading about the policy.I acknowledge that no matter how fair of a game I play the laws favor the bigger legal team. So, what’ev’s. If you boot me I will find another service and work to turn people away form your service. Is that not the current social contract?
03.19.2013
Filipe
Great initiative but I was expecting to see it further extended. I would like to see it in “KISS mode” with some nice infographics with the DO’s and DONT’s, mainly squeezing the content to the minimum. Of course, always providing links the full text on each section. An approach like this is how I would see it as truly original and creative.
03.20.2013
Jennifer Barrett
Thank you for the effort- really. To make it really understandable and useable: I like someone’s previous comment about a “do’s and dont’s” section. Also perhaps examples of misuse in story form “one Mailchimp user made this mistake or that error and this is why it violate the terms – and this is what happened”… People learn through stories and examples
03.21.2013
John Blois
Interesting, Valerie. Can you give examples of the necessary use of “shall”? (Above you say ‘You’ll still come across an occasional “represent and warrant,” “shall,” or “indemnify,” but know that these terms are there for a reason—not just because we couldn’t think of anything better.’)
03.22.2013
Valerie
So we actually only use “shall” once (!) in the legal policies. It’s in Section 12 and we left it there since this section is where our users are agreeing to not violate our intellectual property rights. Shall is used in contracts to indicate an obligation. In other areas we used “promise” or “will” (to indicate an event in the future) instead of “shall.” “Represent and Warrant” is a better example, since that phrase appears throughout the policies. “Represent and Warrant” was left in because it is a specific legal phrase that means that you are representing a fact to us and we may legally rely on your representation and take legal action if you were lying about that fact. If you are interested in legal drafting debates (which I know like me you must be) this site has some interesting articles http://www.adamsdrafting.com/blog/
03.25.2013
John Blois
Do you think “shall” is necessary in Section 12? Or could it say “You will respect our property rights”? Not a big deal but it would improve the tone. You could achieve a similar result by condensing “in order to” to just “to”, in Section 1 of the Terms of Use. And how about getting rid of the number duplication in Section 1: eighteen (18) years old? The reason for the duplication (avoiding fraud) doesn’t seem to apply here.
04.03.2013
Edward Ralpka
Great piece and I’m glad you’ve taken the time to think through and explain yourself, and reasoning behind some of the things companies do. I plan to review this in the future to remind myself of how to approach customer relations.
Unfortunately, though, you made a bad chice in putting it up in washed out type that is almost UNREADABLE on a computer monitor. I had to copy it all and print it out to be able to see it without incurring incredible eye-fatigue.
You might want to consider using BLACK type for these things, which has worked very well for about 500 years now in the printing industry.
(You might want to pass this observation on to the “designer” of the page, too. Sometimes these artsy types see themselves as Steve Jobs incarnate and don’t have a very practical grasp on the basic issues of life.)
EAR
03.23.2013
dawn
It is wonderful & refreshing to experience a company that is so open about your thoughts behind your actions and the fact that you are making changes to help your clients is an added bonus. Keep up the great work!
03.25.2013
TheRexStudio
MailChimps Redesigned Terms of Service and Privacy Policy – http://t.co/uGSQXBADR9
04.21.2013
TheRexStudio
MailChimps Redesigned Terms of Service and Privacy Policy – http://t.co/f0vPIkilsX
04.26.2013